Lozinski et al v. Black Bear Lodge, LLC et al

UNITED
STATES
DISTRICT
COURT
FOR THE DISTRICT OF
NEW
JERSEY
JERZY
P.
LOZINSKI
AND
JOANNA
LOZINSKI,
Civ.
No.
	16-7963
(KM)
(JBC)
Plaintiffs,
	OPINION
V.
BLACK
BEAR LODGE,
LLC,
THE
BLACK
BEAR LODGE-A
CONDOMINIUM
ASSOCIATION,
JOHN
DOES
AND
JANE ROES
1-10,
fictitious individuals, and
ABC
Corp.
and
DEF
Corp. 1-10,
fictitious
corporations,
Defendants.
KEVIN MCNULTY,
U.S.D.J.:
Plaintiffs
Jerzy
P.
Lozinski
(“Jerzy”)
and
Joanna
Lozinski
(collectively,
the
“Lozinskis”)
brought this action against Defendants
Black Bear
Lodge,
LLC,
and
The
Black Bear
Lodge —
A
Condominium Association
(collectively “Black
Bear”) for
personal injuries. Residents
of New
Jersey, the
Lozinski family
rented
a condo
unit at
Black Bear, a
New
Hampshire resort, where
Mr.
Lozinski
unfortunately suffered a
slip
and fall.
	1
Now
before
the Court
is Black Bear’s
motion
to
dismiss the
Lozinskis’
amended complaint
(the “Complaint”)
2
for
lack
of
personal jurisdiction pursuant
to Fed.
R.
Civ. P.
	12(b)(2).
	3
1
	WaterviUe
Company, Inc.,
(“Waterville”)
was erroneously identified in the
original complaint as a defendant.
(Nov. 14,
2016 Letter from Plaintiff’s Counsel, ECF
no.
5)
On November
14,
2016, Plaintiffs filed an amended complaint to correct the
error
(ECF no. 4),
and
Waterville was terminated as a defendant on November
16,
2016.
2
	Record items cited repeatedly will be abbreviated as follows
“Compl.”
=
	Amended Complaint (ECF no.
4)
1
Case 1:17-cv-00210-LM Document 11 Filed 04/10/17 Page 1 of 9

For
the
reasons stated
below,
I
find
that
the
Lozinskis have
failed
to
establish this
Court’s
personal jurisdiction
over
Black Bear,
and
I
shall
deny
the
Lozinskis’
request
for leave
to
file
a Second Amended Complaint.
I
will,
however,
transfer this
case
to
the
United
States
District Court
for
the District
of
New
Hampshire.
I. 	BACKGROUND
Plaintiffs,
the
Lozinskis, are
New
Jersey
citizens.
(Compl.
¶
2)
Defendants,
Black Bear
Lodge,
LLC,
and
The
Black Bear
Lodge
-
A
Condominium Association, are both
entities
organized
under
New
Hampshire
law
and
have
their
principal
offices
or
place
of
business
in
New
Hampshire.
(Id.
VT
4—5)
“Def.
Mot.”
=
	Motion to
Dismiss
for
Lack
of
Jurisdiction
(ECF
no.
8)
“P1.
Opp.”
=
	Plaintiffs’ Reply
Brief in Opposition
to
Defendant’s
Motion
to
Dismiss
Plaintiffs’
Complaint Claiming
Lack
of
Jurisdiction
and
Alternatively, For
Leave to
File
a Second Amended
Complaint
(ECF
no.
9)
“2AC”
=
	Plaintiffs’
Proposed “Second Amended Complaint”
(ECF
no.
9,
pp.
15—30)
“Def.
Reply”
=
	Defendants’
Reply
Brief
(ECF
no.
10)
Black Bear seeks
“an Order dismissing the Complaint
for
lack
of
personal
jurisdiction and
diversity
as required
pursuant
to 28 U.S.C.
Section
1332.”
(Def.
Mot.
1)
Black
Bear asserts that
no brief is
necessary because
“the Complaint on
its
face
fails
to
demonstrate compliance with the requirement
of 28 U.S.C.
Section
1332.”
(Id.;
see also
Local
Civ.
R.
7.1(4)
(in
an appropriate case,
“a
party
may
file
a
statement that
no brief is
necessary and the reasons
therefor”).
However,
the Complaint does not on
its
face fail to
demonstrate compliance with
28 U.S.C.
§
1332(a),
the source
of
a federal district court’s diversity
jurisdiction.
The
Complaint alleges
that
“the
amount
in controversy exceeds seventyfive thousand
dollars ($75,000)
and Plaintiffs are citizens
of
a state, which is different from the state
where Defendants are incorporated and have their principal place of
business.”
(Compi. ¶ 7)
Black Bear’s motion can only reasonably be
understood as a motion to dismiss
for lack of
personal jurisdiction pursuant
to Rule 12(b)(2).
Both sides’ arguments in
the opposition and reply briefs are solely directed to
that issue. (See
P1.
Opp.
8—11;
Def. Reply
1—3)
2
Case 1:17-cv-00210-LM Document 11 Filed 04/10/17 Page 2 of 9

In
August
2014,
the
Lozinskis
viewed
Black
Bear’s
website
(2AC
¶
8),
and
then
reserved a
condo
unit at
Black Bear
Lodge for
the upcoming
Thanksgiving
holiday
weekend.
	4
(Compi.
¶
8)
On
November 27,
2014, the
Lozinskis
and their
three children arrived
at
Black
Bear’s
premises.
(Id.
¶
11)
The following
evening,
Jerzy
used
the
elevated
outdoor hot
tub
located
near
the
Lozinskis’
condo
unit.
(Id.
¶
13)
Upon exiting
the hot tub, Jerzy
observed
ice
on
the
top
step
of
the hot
tub staircase, and
he
leaned
on
a
hand
railing
for
support.
The
complaint
alleges
that
the
railing collapsed
and
that,
as a result, Jerzy
fell
down
the staircase and
was injured.
(Id.
¶{ 17—20)
On
October
27,
2016, the
Lozinskis
filed
suit
here
in
the
United
States
District Court
for
the District
of
New
Jersey, asserting
various
causes
of
actions
in
tort against
Black Bear.
II. 	LEGAL STANDARDS
AND
DISCUSSION
A.
	Personal
Jurisdiction Standard
Once a
defendant
files
a motion
to
dismiss
for
lack
of
personal
jurisdiction
pursuant
to Fed.
R.
Civ.
P.
	12(b)(2),
the plaintiff bears the burden
of
establishing sufficient facts
to
show
that
jurisdiction
exists. Marten
u.
Godwin,
499 F.3d 290,
295—96
(3d Cir.
2007). Initially, a
court must
accept the
The Lozinskis’
opposition brief provides additional details:
In
the summer
of
2014, plaintiffs decided
to
take their
family to
New
England ski country
for
the upcoming Thanksgiving holiday. Plaintiff,
Joanna,
went
on
the internet
to
a website known as
“www.ownerdirect.com.” Said website, advertises “vacation rentals”
by
country and in the case
of
the
U.S., by
state.
Plaintiff,
Joanna,
chose the
link provided
for New
Hampshire, where she was presented
with
numerous rental opportunities, including offerings in Waterville Valley,
New
Hampshire.
In
the course
of reviewing the rentals presented,
including some offered by
defendant, Black Bear. She proceeded to
go to
defendant, Black Bear
Lodge’s,
website “www.blackbearlodge.com,”
which provided detail about this condominium resort
facility.
In August
of 2014, Plaintiff,
Joanna. called defendant Black Bear, on the
telephone, reserved one of Black Bear’s rental units
for the Thanksgiving
holiday and paid the required deposit.
(P1.
Opp.
4)
3
Case 1:17-cv-00210-LM Document 11 Filed 04/10/17 Page 3 of 9

plaintiff’s
allegations
as true and construe disputed
facts
in favor of
the
plaintiff.
Pinker
v.
Roche Holdings,
Ltd.,
292
F.3d
361, 368
(3d Cir.
2002).
Where
factual allegations are disputed,
however,
the court
must
examine any
evidence
presented.
See,
e.g.,
Eurofins
Pharma
U.S.
Holdings
v.
BioAlliance
Pharma
SA,
623 F.3d
147,
	155—56
(3d Cir.
2010) (examining
the
evidence
supporting the
plaintiff’s allegations);
Patterson
v.
FBJ
	893 F.2d 595,
603—04
(3d Cir. 1990)
(“A
Rule
12(b)(2)
motion,
such as
the motion made
by
the
defendants
here,
is
inherently
a
matter
which
requires resolution
of
factual
issues
outside the
pleadings,
i.e.
whether
in
personam jurisdiction actually
lies. Once
the defense
has
been raised,
then the
plaintiff
must sustain
its
burden
of
proof
in
establishing jurisdictional facts through
sworn affidavits or
other competent
evidence.”’)
(quoting
Time
Share
Vacation
Club
v.
Ati.
Resorts,
Ltd.,
735 F.2d 61, 66 n.9
(3d Cir. 1984)).
The
plaintiff
“need only
establish
a
prima
facie
case
of
personal
jurisdiction.”
Miller Yacht
Sales,
Inc.
v.
Smith,
384 F.3d 93, 97
(3d Cir.
2004).
However,
a plaintiff may
not
“rely
on
the bare pleadings
alone” in
order
to
withstand a motion
to
dismiss
for
lack
of
personal jurisdiction.
“Once
the
motion
is
made, plaintiff
must
respond
with
actual
proofs,
not mere
allegations.” Patterson, 893 F.2d
at 604 (internal citations
omitted);
Time
Share
Vacation
Club,
735 F.2d
at
66 n.9.
To
assess whether
it
has personal jurisdiction
over a
defendant,
a
district
court must undertake a two-step inquiry.
IMO
Indus.,
Inc.
v.
Kiekert,
AG,
155
F.3d 254, 259
(3d Cir. 1998).
First, the court
is
required
to
use the relevant
state’s long-arm
statute
to
see whether it permits the exercise
of
personal
jurisdiction.
Id.; Fed.
R. Civ. P.
4(k).
“Second,
the court must
apply the
principles
of
due process”
under the federal Constitution.
WorldScape,
Inc.
v.
Sails Capital
Mgmt., Civ. No. 10—4207,
2011
WL
3444218
(D.N.J. Aug. 5,
2011)
(citing
IMO
Indus., 155 F.3d at
259).
In New
Jersey, the first step collapses into the second because
“New
Jersey’s long-arm statute provides for jurisdiction coextensive with the due
4
Case 1:17-cv-00210-LM Document 11 Filed 04/10/17 Page 4 of 9

process requirements
of
the
United
States
Constitution.”
Miller
Yacht
Sales,
384 F.3d
at
96
(citing N.J.
Ct.
R.
4:4-4(c)).
Accordingly,
personal jurisdiction
over
a
non-resident defendant
is
proper
in
this Court
if
the defendant has
“‘certain
minimum contacts
with
[New
Jersey]
such
that
the maintenance
of
the suit
does
not
offend
traditional notions
of
fair play
and
substantial justice.”
Provident
Nat’l
Bank
v.
Cal.
Fed.
Say.
&
Loan Ass’n, 819 F.2d 434, 437
(3d Cir.
1987)
(quoting
Int’l
Shoe
Co.
v.
Washington,
326
U.S.
310, 316, 66
S.
Ct. 154
(1945)).
There are
two
kinds
of
personal jurisdiction
that
allow
a district court
to
hear
a case
involving
a
non-resident defendant: general
and
specific.
A
court
may exercise
general
jurisdiction
over a foreign
corporation where
“the
defendant’s
contacts
with
the
forum are
so
‘continuous and
systematic’
as
to
render them essentially
‘at
home’ in
the
forum state.”
	Senju
Pharmaceutical
Co.,
Ltd.
v.
Metrics,
Inc.,
96
F.
Supp.
3d 428, 435
(D.N.J. 2015) (citing Daimler
AG
v.
Bauman,
—
U.S. 	,
134 5. Ct.
746, 754
(2014); Good
year
Dunlop
Tires
Operations,
S.A.
v.
Brown,
—
U.S. 	,
	131 S.
Ct.
2846, 2851
(2011);
Helicopteros Nacionales de
Colombia,
S.A.
v.
Hall,
466
U.S.
408, 414,
	104
S.
Ct.
1868
(1984)).
In
contrast
to
general jurisdiction,
specific
jurisdiction
relies on
the
defendant’s forum-related activities
that
give
rise
to
the plaintiffs’ claims. See
Helicopteros,
466
U.S.
at
414 n.8,
104
S.
Ct.
	1872.
Establishing
specific
jurisdiction requires a
three-part
inquiry:
(1)
whether the defendant
purposefully directed its activities at the forum;
(2)
whether the litigation arises
out
of or
relates
to
at least
one of
the contacts; and
(3)
whether the exercise
of
jurisdiction otherwise comports with traditional notions
of
fair play and
substantial justice.
O’Connor
v.
Sandy Lane Hotel
Co.,
Ltd.,
496 F.3d 312, 317
(3d Cir. 2007). The defendant need not
be physically located in the state
while
committing the alleged acts. Burger King Corp.
v.
Rudzewicz, 471 U.S. 462,
476, 105 S. Ct.
2174 (1985). Nor is specific jurisdiction defeated merely
because the bulk of
harm occurred outside the forum. Keeton
v.
Hustler
5
Case 1:17-cv-00210-LM Document 11 Filed 04/10/17 Page 5 of 9

Magazine, Inc., 465 U.S. 770, 780, 104 S. Ct. 1473 (1984). A single act may
satisfy the minimum contacts test if it creates a substantial connection with
the forum. Burger King, 471 U.S. at 476 n. 18, 105 S. Ct. 2174.
B. Personal Jurisdiction in this Case
Here, the Lozinskis have not established that this Court possesses
general or specific personal jurisdiction over Black Bear. The Lozinskis first rely
on the contractual relationship itself: the contract with New Jersey citizens
formed when the Lozinskis reserved and then paid for the condo unit, they say,
establishes the necessary minimum contacts with New Jersey. (P1. Opp. 9—10)
Alternatively, the Lozinskis rely on Black Bear’s internet presence. Because
Black Bear markets its lodging accommodations across state lines to anyone
with an internet connection, they say, it is reasonable to require Black Bear to
defend itself against a lawsuit in any jurisdiction where it has “extract[ed} some
commercial benefit from a citizen.” (Id. at 10)5 Both of the Lozinskis’ arguments
lack merit.
First, the bare fact that a defendant contracted with an out-of-state
plaintiff does not meet the first part of the three-part specific jurisdiction
inquiry: the existence of a contract does not demonstrate that the defendant
purposefully directed its activities at the out-of-state forum. Metcafe v.
Renaissance Marine, Inc., 566 F.3d 324, 338 (3d Cir. 2009) (“[Ijt is well
established . . . that a nonresident’s contracting with a forum resident, without
more, is insufficient to establish the ‘minimum contacts’ required for an exercise
5 	The facts about Black Bear’s internet presence are not alleged in the complaint.
The Lozinskis have attached a proposed Second Amended Complaint to their brief in
which they allege that Black Bear operates a commercial website (2AC ¶j 4, 6) and
that the Lozinskis made their reservation after reviewing that website. (Id. ¶ 8) They
ask that, should the Court dismiss the Complaint, they be granted leave to file the
Second Amended Complaint. I consider the internet argument on this motion, and find
it legally inadequate. Amendment would therefore be futile.
6
Case 1:17-cv-00210-LM Document 11 Filed 04/10/17 Page 6 of 9

of personal jurisdiction over the nonresident.”) (emphasis in original) (quoting
Sunbelt Corp. v. Noble, Denton & Assoc., Inc., 5 F.3d 28, 32 (3d Cir. 1993)).
Second, the Third Circuit has specifically rejected arguments nearly
identical to the Lozinskis’ contention that this Court has specific personal
jurisdiction over Black Bear because it, “conduct[s] business, in part, by
making rental units available to New Hampshire citizens and out of state
citizens, including Plaintiffs, as citizens of New Jersey, through advertising and
offerings posted on internet websites, availing itself of the opportunity to
benefit from the solicitation of anyone in possession of a personal computer.”
(2AC ¶ 6) As the Third Circuit has observed:
the mere operation of a commercially available web site should not
subject the operator to jurisdiction anywhere in the world. Rather,
there must be evidence that the defendant “purposefully availed”
itself of conducting activity in the forum state, by directly targeting
its web site to the state, knowingly interacting with residents of the
forum state via its web site, or through sufficient other related
contacts.
Toys “R” Us Inc. v. Step Two, S.A., 318 F.3d 446, 452—53 (3d Cir. 2003)).
Further, in a recent non-precedential case, a Third Circuit panel held that
maintaining even an “interactive website . . . fails to qualify as purposeful
contact.” Rocke v. Pebble Beach Co., 541 F. App’x 208, 211 (3d Cir. 2013)
(citing id.).
Nothing in this record suggests that Black Bear’s website directly
targeted New Jersey, or that Black Bear knowingly interacted with New Jersey
residents through the website. In fact, Joanna Lozinski made the reservation
by phone rather than through the website. (P1. Opp. 4)
Under the circumstances—whether as alleged in the Complaint or the
proposed Second Amended Complaint—Black Bear did not purposefully direct
its activities toward New Jersey and its citizens. Accordingly, this Court lacks
personal jurisdiction over the defendants.
7
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C. Transfer
Although the Lozinskis have not raised the possibility of transfer, the
Court may sua sponte cure a jurisdictional defect by transferring the case
under 28 U.S.C. § 1631. See Faulkenburg v. Weir, 350 Fed. Appx. 208, 209
(10th Cir. 2009); see also Island Insteel Sys., Inc. v. Waters, 296 F.3d 200, 218
n.9 (3d Cir. 2002) (pointing out that district court “had authority, if it found
that it lacked in personam jurisdiction,” to transfer action to another district
court with personal jurisdiction over defendants, and recognizing that district
court had ability to do so sua sponte).
If a “court finds that there is a want of jurisdiction, the court shall, if it is
in the interest of justice, transfer such action or appeal to any other such court
in which the action or appeal could have been brought at the time it was filed.”
28 U.S.C. § 1631. I find that it is in the interest of justice to transfer this case
to a district where a court may properly exercise personal jurisdiction over
Black Bear, “rather than dismiss the case and force the [p]laintiffs to refile and
restart in another jurisdiction.” Farber v. Tennant Truck Lines, Inc., 84 F. Supp.
3d 421, 435 (E.D. Pa. Feb. 9, 2015). Both defendants are entities organized
under New Hampshire law and have their principal offices or place of business
in New Hampshire; as such, they are subject to general personal jurisdiction
there. See DaimlerAG v. Bauman, — U.S. 	, 134 5. Ct. 746, 760 (2014)
(“With respect to a corporation, the place of incorporation and principal place of
business are paradig[m] . . . bases for general jurisdiction.” (internal quotation
marks and citation omitted)). Accordingly, I will transfer this case to the United
States District Court for the District of New Hampshire.
III. 	CONCLUSION
For the foregoing reasons, I conclude that the Lozinskis have failed to
allege facts which, if true, would establish that this Court has personal
jurisdiction over the defendants. I shall deny the Lozinskis’ request for leave to
file a Second Amended Complaint on grounds of futility, because the proposed
8
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amendments would not cure the jurisdictional defects. I will however, in the
interest of justice, transfer this case to the District of New Hampshire.
An appropriate Order follows.
Dated: April 10, 2017
HMND.i
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